Waiting for the World to Change: Article 50

‘When will the UK trigger Article 50?’ It’s the question on everyone’s lips. The first thing everyone in Europe says when they wake up in the morning. Article 50 of the Treaty on European Union (TEU), to give it its grand title, is the mechanism by which the UK will ‘take back control’ and leave the European Union.

Sounds exciting. Let’s look a little closer. You can read what it actually says here. Otherwise, in normal English: a member of the EU can decide to leave the union. It sets the process in motion by telling the European Council (one of the three law-making bodies of the EU, made up of the ministers of each member-state). From that point there is a two-year period to negotiate an exit treaty. The two-year period can only be extended if all other member-states of the EU agree. If it expires without an agreement having been finalised, the rules of the EU simply stop applying to the former member.

So far, fairly straightforward. But there’s an interesting little wrinkle in the first paragraph of Article 50. ‘A Member State may decide to withdraw from the Union in accordance with its own constitutional requirements’ (emphasis added). What are these constitutional requirements in the UK? That’s a difficult question. Unlike most countries, for example the USA, Germany and France, the UK doesn’t have a written constitution, which would guide us on how to confront the issue. Instead, the ‘constitution’ of the UK is a mishmash of laws passed by parliament and ‘conventions’ i.e. how we’ve always done things.

So what are the laws, and how have we always done things in the UK? There are two competing views on how the decision to invoke Article 50 could be made.

Firstly, the Prime Minister and the government of the day could do it. The basis of this is that the referendum result has given the government a mandate to carry out the will of the people i.e. to get us out of the EU. The PM can use what’s called the ‘royal prerogative’ to do this. In the Middle Ages, this was the power held by the king or queen and underpinned their authority. Since the 19th Century, this power has been used by government ministers on behalf of the queen as the legal basis for decisions that don’t go through parliament.

On the other hand, the view is that a vote must be taken in parliament for the government to be able to trigger Article 50. A key part of the Leave campaign was that a vote to leave would make our parliament sovereign again, rather than ‘Brussels bureaucrats’ making laws. On top of that, the law that took us into the EU, the European Communities Act, was passed by parliament, and as a rule, the Prime Minister and the government can’t do something which is directly contrary to an act of parliament. The solution would, therefore, be for an act of parliament granting the PM authority to trigger Article 50 TEU. If you want more detail on these arguments, this is brilliant.

This has all been brought into focus today, as we learnt that Mishcon de Reya, a highly-regarded law firm, are preparing to go to the courts for a ruling that the PM and the government do not have the authority to trigger Article 50. If the courts agree with Mishcon, parliament will have to be given the chance to vote on it.

Pro-Leave outlets are up in arms at the thought, because most MPs are in favour of remaining in the EU. They claim it would effectively be a chance for parliament to overturn the referendum result. At Conscious Uncoupling, we think that’s unlikely. An MP could vote against invoking Article 50, but they would run a very serious risk of losing their seat at the next election. Assuming they aren’t in London or Scotland. Or Norwich.